It's certainly not every day that you see a decision like this, where a judge goes to great lengths and detail to call out one of the parties to a litigation for their misconduct - even when it's bad.

Judging from this March 20, 2023 decision, however, it is apparent that one commercial division judge had her fill, and wasn't going to take it anymore.

Following a trial in the breach of fiduciary duty, breach of contract and misappropriation case of Hall v. Middleton, et al., at which an award and judgment was granted to the plaintiffs, the defendants moved to stay the case on the grounds that one of their attorneys had just passed away. In many instances, such as when the party's attorney is a sole practitioner, a stay would be warranted, so the party could retain new counsel to take over the case. But here, the defendants had been represented by two attorney throughout the case, and the primary attorney of record was still engaged.

Thus, putting it mildly, the trial judge was terribly unimpressed by what she perceived - and apparently rightly so - to be a thinly (and quite poorly) veiled delay tactic, stating:

If [defendant's counsel] had passed away while there was more litigation activity to be done prior to judgment the court would have certainly issued a  discretionary stay to ensure defendants were not prejudiced by the terms of any contemplated judgment. But the court had already made all of its decisions and signed the judgment on February 6, prior to [his] passing. All that occurred afterward was the Clerk performing the ministerial act of entering the judgment. Defendants' claimed prejudice is spurious. Rather than filing this motion, they could have taken the time to comply with the judgment ...

Even if this motion had any merit--and it does not even sufficiently merit opposition from plaintiff--at this point, nothing would be accomplished ... This motion is nothing more than yet another frivolous delay tactic ...

In the end, defendants' cynical attempt to leverage the tragic death of [their counsel] and their unfounded impugning of [defendant's other, local counsel's] professionalism, abilities and ethics is low and distressing. Given the potential enforcement proceedings that may lie ahead, [defendants' newly substituted counsel] is strongly cautioned that further assertion of frivolous arguments may result in sanctions. And [defendant #1] is cautioned that ifhe does not immediately comply with the injunctive portion of the judgment, plaintiff may move to hold him in contempt.

The Takeaway

Simply put, the takeaway should be obvious: if you're in the Commercial Division, and certainly in Federal Court, if you choose to pursue "iffy" motion practice, or take highly questionable positions in a litigation, you do so at your own peril.



Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer